Blaine County v. Butte County

• Decision Date: 16 November 1927
• Docket Number: 4801
• Citation: 45 Idaho 193,261 P. 338
• Parties: BLAINE COUNTY, a Municipal Corporation, Appellant, v. BUTTE COUNTY, a Municipal Corporation, Respondent
• Court: Idaho Supreme Court

261 P. 338

45 Idaho 193

BLAINE COUNTY, a Municipal Corporation, Appellant, v. BUTTE COUNTY, a Municipal Corporation, Respondent

No. 4801

Supreme Court of Idaho

November 16, 1927

STATUTE OF LIMITATIONS-COUNTIES-DEMAND-STATUTORY LIABILITY.

1. C S., sec. 6618, providing that limitations apply to actions brought in name of state, or for state's benefit, in same manner as to actions by private citizens, applies equally to counties of state.

2. Where, under Laws 1917, chap. 98, creating Butte county provision was made for complete apportionment and settlement of accounts between counties and filing of statement with commissioners of each county, which became final and binding since no relation of agency or trust existed between counties, no demand was necessary for amount due thereon, to start running of three-year limitation of C. S., sec. 6611.

3. Where, under Laws 1917, chap. 98, secs. 15, 16, Butte county was created from parts of other territory and amount found to be due on August 13, 1917, from Butte county to plaintiff county by accountants appointed under the act was a liability created by statute, since cause of action accrued on failure of county commissioners, under C. S., sec. 3411, to make payment at their meeting in October, 1917, complaint to recover amount thereof, filed November 14, 1925, was barred by three-year limitation of section 6611.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Action for money due, by virtue of the act of legislature creating defendant county. Judgment for defendant. Affirmed.

Judgment affirmed. Costs to respondent.

W. A. Brodhead, J. J. McFadden and Proctor K. Perkins, for Appellant.

This cause of action is not barred by the statute of limitations. (Elmore County v. Alturas County, 4 Idaho 145, 95 Am. St. 53, 37 P. 349; Logan Co. v. City of Lincoln, 81 Ill. 156; County of Piatt v. Goodell, 97 Ill. 84; Bannock Co. v. Bell, 8 Idaho 1, 101 Am. St. 140, 65 P. 710; C. S., secs. 6611, 6618; Gustaveson v. Dwyer, 83 Wash. 303, 145 P. 458.)

W. J. Lamme and Jo. G. Martin, for Respondent.

The limitations prescribed in this chapter apply to actions brought in the name of the state, or for the benefit of the state, in the same manner as to actions by private parties. (C. S., sec. 6618.)

The statute of limitations of this state is expressly made applicable to the state. It is therefore applicable to the counties of the state. (Bannock Co. v. Bell, 8 Idaho 1, 101 Am. St. 140, 65 P. 710.)

When one county is carved out of the portion of another and adjustment and settlement of all accounts is made, the liability of one county to the other is created by statute and an action to enforce such liability must be brought within three years. (Canyon County v. Ada County, 5 Idaho 686, 51 P. 748.)

BABCOCK, Commissioner. Featherstone, Adair, CC., Wm. E. Lee, C. J., Givens, Taylor and T. Bailey Lee, JJ., concurring, BUDGE, J., Concurring Specially.

OPINION

BABCOCK, Commissioner.--

This action was brought by Blaine county against Butte county to recover a sum of money claimed by the former county to be due and owing to it under and by virtue of an act of the legislature creating Butte county.

The complaint was filed November 14, 1925, and contains substantially the following allegations: That pursuant to the terms of the legislative enactment creating and organizing the county of Butte, an adjustment and settlement was made between the plaintiff and the defendant; and that pursuant to the further terms of said legislative act, accountants were appointed to agree upon and adjust all of the existing accounts between the said two counties, and that the said accountants filed their report on August 13, 1917; that it was determined by the said accountants that the defendant was indebted to the plaintiff in the sum of $ 1,570.11, as the defendant's proportionate share of the cost of construction of two bridges, which sum, prior to that time, had been paid by the plaintiff; that on February 17, 1925, the plaintiff demanded of the defendant the payment of said sum and the defendant refused to pay the same.

The defendant interposed a demurrer to the complaint on the ground, principally, that the action was barred by the provisions of C. S., sec. 6611. The demurrer was sustained by the court, in so far as it raised the bar of the statute of limitations, and the plaintiff was given twenty days in which to amend its complaint, and having failed to do so within the time allowed by the court, and refusing so to do, on February 20, 1926, judgment of dismissal was entered. This appeal is from the judgment of dismissal.

Appellant assigns as error the order of the court sustaining the demurrer and in entering the judgment of dismissal.

By an act of the legislature, approved February 6, 1917, Butte county was created and formed out of portions of the territory of Blaine, Jefferson and Bingham counties. For the purpose of effecting the apportionment of indebtedness and division of property between Butte county and Blaine county, said act provided for the appointment of an accountant by each of said counties, to constitute a board of auditors and appraisers, with power and authority to make a complete apportionment and settlement with reference to the indebtedness and division of property of said counties, with their conclusions as to the amounts due from one county to the other upon such settlement, and providing that, upon the filing with the clerk of the board of county commissioners of each of said counties a duplicate certified copy of such statement, the same should be final and binding upon both and each of said counties. (Sess. Laws 1917, chap. 98, p. 350, sec. 15.)

The act also provided that the board of county commissioners of the debtor county, at their first meeting after the filing of such statement and report, should cause county warrants to be drawn by the auditor of the county for the amount so due, payable to the creditor county. Sec. 16 of the act, supra.

C. S., sec. 6607, provides:

"The periods prescribed for the commencement of actions other than for the recovery of real property are as follows."

And C. S., sec. 6611, provides:

"Within three years: 1. An action upon a liability created by statute other than a penalty or forfeiture. . . ."

C. S., sec. 6618, provides:

"The limitations prescribed in this chapter apply to actions brought in the name of the state, or for the benefit of the state, in the same manner as to actions by private parties."

C. S., sec. 3411, provides:

"The regular meetings of the boards of commissioners must be held at their respective county seats on the second Mondays in January, April, July and October of each year, and must continue from time to time until all the business before them is disposed of. . . ."

The contention of appellant is that the statute of limitations has no application, does not run as to a claim of one county against another, and, in any event, in this case, it would not begin to run until demand for the payment of the money had been made by Blaine county.

The legislature, at the time of the enactment of C. S., sec 6618, making the statute of limitations applicable to the state, evidently had in mind and recognized the common-law rule exempting the government from such limitations, and meant and intended to provide a limitation for every kind of an action that could be brought in the courts of the state, and passed the same for the express purpose of making the statutory limitation apply with equal...